LAKSHYA LEVEL MARKETING P LTD, MUMBAI V. DCIT 9(2), MUMBAI

ITA 970/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7890 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-02-2015
• Court: TRIBUNAL
• Department Lawyers: R P MEENA
• Assessee Lawyers: SNEHAL J SHAH
• Keywords: Unexplained cash credit; Unexplained investment; Opportunity of being heard
• Section: 143(3); 142(1); 234B; 14A; 68; 69; 144; 2

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AG G A R WAL, AM I.T.A. NO. 970 /MUM/2015 ASSESSMENT YEAR : 2009 - 10 LAKSHYA LEVEL MARKETING PVT. LTD. C/O MR. NARESH MUNDHRA 207, VARSHA APT., 1/10/1, SOUTH TUKOGANJ, INDORE - 452001 VS. D CIT - 9(2 ) MUMBAI PAN: AABC L4447L (APPELLANT) : (RESPONDENT) APPELLANT BY : SHRI SNEHAL J. SHAH RESPONDENT BY : SHRI R.P. MEENA, CIT(DR) DATE OF HEARING : 14/03 /2017 DATE OF PRONOUNCEMENT : 22 /03/2017 O R D E R PER D. T. GARASIA, JM : THIS APPEAL IS FILED BY THE ASSESSE E AGAINST THE ORDER OF CIT(A) - 20 MUMBAI, DATED 22/11/2012 ARISING OUT OF ORDER OF D CIT - 9(2 ) MUMBAI DATED 30 /12/2011 PASSED U/S 143(3) OF THE INCOME TAX AC T, 1961 FOR THE ASSESSMENT YEAR 2009 - 10. 2. THE ASSESSEE HAS FILED THE APPEAL ON FOLLOWING GROUND S : - 2 LAKSHYA LEVEL PVT. LTD. ITA NO. 970/M/2015 1. THE COMMISSIONER OF INCOME TAX (APPEAL) - 20 (CIT(A)) ERRED IN CONFIRMING THE PASSING OF THE ASSESSMENT ORDER U/S 144 OF THE INCOME TAX ACT, 1961 (THE ACT) BY THE ASSESSING OFFICER WITHOUT AFFORDING ANY OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 2. THE CI T(A) ERRED CONFIRMING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER OF RS.2,57,875/ - UNDER PROVISIONS OF SECTION 14A R.W. RULE 8D OF THE ACT. 3. THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.22,68,11,974/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF OUTS TANDING SUNDRY CREDITORS DUE TO NON VERIFICATION. 4. THE CIT(A) ERRED IN CONFIRMING ADDITION OF RS.12,23,00,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. 5. THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.7,70,000/ - ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 6. THE CIT(A) ERRED IN CONFIRMING THE REJECTION OF THE APPELLANTS CLAIM FOR DEDUCTION OF RS.3,50,000/ - UNDER CHAPTER VIA OF THE ACT. 7. THE DY. COMMISSIONER OF INCOME TAX - (2) (THE DCIT) ERRED IN CHARGING INTEREST U/S 234B AND 2 34C OF THE ACT. 3. THE SHORT FACTS OF THE CASE ARE AS UNDER: - THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 30/09/2009. THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) WAS ISSUED ON 28/09/2010 AND SERVED ON THE ASSESSEE BY AFFIXTURE. NOTICE U/S 142(1) WAS ISSUED ALONG WITH A QUESTIONNAIRE ON 29/07/2011 ASKING THE ASSESSEE TO SUBMIT VARIOUS DETAILS ON OR BEFORE 11/08/2011. HOWEVER, NO DETAILS WERE SUBMITTED AND NO COMPLIANCE WAS MADE . T HEREAFTER FINAL NOTICE ON 22/11/2011 WAS ISSUED AND THE ASSESSEE WAS ASKED TO SUBMIT THE DETAILS THEREOF . AGAIN THERE WAS NO COMPLIANCE, T HEREFORE, MATTER WAS DECIDED EX - PARTE. MATTER CARRIED TO CIT(A) AND BEFORE CIT(A) THE ASSESSEE DID NOT REMAIN PRESENT. THEREFORE, THE MATTER WAS DECIDED EX - PARTE. 3 LAKSHYA LEVEL PVT. LTD. ITA NO. 970/M/2015 4. D URING THE COURSE OF HEARING , THE LD. AR SUBMITTED THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME BUT SOMET IME IN 2009 GOVERNMENT AUTHORITIES INCLUDING CRIME BRANCH , ORISSA POLICE INITIATED ACTION S UNDER VARIOUS PROVISIONS OF OTHER LAW PERTAINING TO MONEY CI RCULATION , CHITS AND PRIZ ES. THE BUSINESS OF THE ASSESSEE COMPANY WAS ABRUPTLY STOPPED DUE TO RESTRICTION S PLACED BY SUCH GOVERNMENT AUTHORITIES ON AN ERRONEOUS BELIE F THAT THE ASSESSEE C OMPANY WAS ALSO ENGAGED IN THE AFOREMENTIONED ACTIVITIES. ALL THE DIRECTORS OF THE COMPANY WERE THEN OCCUPIED IN ATTENDING THE VARIOUS INVESTIGATION S CARRIED OUT BY SUCH GOVERNMENT AUTHORITIES AS WELL AS CRIME BRANCH, ORISSA POLICE AND CASES FILED IN THE HONBLE ORISSA HIGH COURT. THE OFFICE OF THE ASSESSEE COMPANY WAS A LSO SHUT DOWN. THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY. H OWEVER, THE ASSESSEE DID NOT RECEIVE ANY NOTICE S . BEFORE CIT(A) , THE ASSESSEE COULD NOT APPEAR FOR THE ABOVE REASONS THEREFORE, THE ASSESSEE MUST BE GIVEN DUE OPPORTUNITY OF HEARING AND THE MAT TER MAY BE RESTORED TO THE FILE OF AO TO DECIDE THE MATTER AFRESH. 5. THE LD. DR OBJECTED TO THE REQUEST OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS FILED MANY DOCUMENTS BEFORE THE TRIBUNAL TODAY. THE LD. DR SUBMITTED THAT THE ASSESSEE DID NOT REMA IN PRESENT BEFORE THE CIT(A) AND AS THE ASSESSEE IS NOT INTERESTED IN PERUSING THE APPEAL, THE ADDITION MAY BE CONFIRMED AND IN THE ALTERNATIVE , IF THE APPEAL IS RESTORED TO THE FILE OF CIT(A) IT MAY BE SUBJECT TO HEAVY CONDITIONS. 6. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES . L OOKING TO THE FACTS AND CIRCUMSTANC ES OF THE CASE , W E FIND THAT IN THIS CASE THE ASSESSING OFFICER HAS PASSED THE ORDER U/S 144 OF THE ACT AND SIMILARLY THE ASSESSEE DID NOT REMAIN PRESENT BEFORE CIT (A) , THEREFORE, THE APPEAL WAS ALSO DECIDED EX - PARTE. THE ASSESSEE IS ENGAGED IN MARKETING BUSINESS. THE ASSESSEE HAS DID NOT REMAIN PRESENT BEFORE ALL THE AUTHORITIES. THEREFORE, IN 4 LAKSHYA LEVEL PVT. LTD. ITA NO. 970/M/2015 THE INTEREST OF JUSTICE AND FAIR PLAY WE RESTORE THIS MATTER TO THE FILE OF CIT(A). THE CIT(A) IS DIRECTED TO DECIDE THIS APPEAL ON MERIT. THE CIT(A) IS ALSO DIRECTED TO CONSIDER ALL THE DOCUMENTS FILED BEFORE THE TRIBUNAL AND THE CIT(A) IS DI RECTED TO CONSIDER WHETHER THESE DOCUMENTS ARE TO BE ADMIT TED OR NOT. THE CIT(A) IS D IRECTED TO DECIDE THE MATTER AFRESH IF HE THINKS DEEM FIT BY CALLING A REMA N D REPORT FROM THE AO. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE CIT(A) WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. THE CIT(A) IS DIRECTED TO DECIDE THE MATTE R AFRESH AFTER GI VING DUE OPPORTU NITY OF HEARING TO THE ASSESSEE, A S PER LAW. IN THE RESULT , APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 22 ND MARCH 2017. SD/ - SD/ - (MANOJKUMAR AGGARWAL ) ACCOUNTANT MEMBER (D.T.GARASIA) JUDICIAL MEMBER MUMBAI, DATE: 22 /03/ 2017 *RAHUL SHARMA* COPY TO: 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI